LEGAL OPINIONS RELATING TO THE BROADCASTING AMENDMENT BILL

DELEGATION Mr Ndivhuho Munzhelele: ADG: DOC Mr Tshegofatso Kgarabjang, D: Legal Services

PRESENTATION OUTLINE Background Office of the Chief State Law Advisor’s legal opinion Independent Legal Opinion Conclusion

BACKGROUND The Office of Chief State Law Advisor (OCSL) was requested by the Department of Communications (DoC) to examine whether Broadcasting Amendment Bill of 2015 is consistent with the Constitution of the Republic of South Africa Act, 1996 (Act No. 108 of 1996). The DoC further requested an independent firm to provide a legal opinion on the Draft Broadcasting Amendment Bill after the Office of the Chief State Law Adviser submitted its legal opinion to the DoC.

OCSLA’S LEGAL OPINION (1) The OCSLA scrutinized whether the Bill complies with the Constitution by considering relevant legislations and Court decisions dealing with exercise of all legislative powers and thereafter redrafted some of the clauses where necessary, to ensure compliance with legislative drafting form and style. In this regard, the OCSLA referred to the decision in Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC), wherein the Constitutional court held that the exercise of all legislative power is subject to at least two constitutional constraints. Firstly there must be rational connection between the legislation and the achievement of a legitimate government purpose. Secondly the legislation must not infringe any of the fundamental rights entrenched in the Bill of Rights

OCSLA’S LEGAL OPINION (2) The OCSLA also referred to the decision in Fedsure life Assurance v Greater Johannesburg TMC 1999 (1) SA 374 (CC) where the court emphasized on the principle of legality; the decision in Minister of Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC); the decision in Minister of Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC) where the Constitutional Court held that the definite and sourcing of public power whether in the constitution or in national legislation is fundamental to the principle of legality; the decision in Pharmaceutical Manufactures Association of South Africa and Another:

OCSLA’S LEGAL OPINION (3) In re Ex Parte President of the Republic of south Africa and Others 2000 (2) SA 674 (CC) para 20 wherein the Constitutional court held that the exercise of public power must comply with the constitution as the supreme law of the land and the doctrine of legality; the decision in Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 wherein the Constitutional Court held that the doctrine of legality entails that both the legislature and executive that they are compelled to follow the principle that they must not exercise power and functions which is beyond that is conferred upon them by law. The Office of Chief State Law Advisor also observed that if the legislation fails to meet the above requirement it remains inconsistent with the rule of law and is therefore invalid.

OCSLA’S LEGAL OPINION (4) After examining the above case laws, the OCSLA came to a conclusion that the proposed amendments are mainly addressing the change in the process for the appointment and removal of Board members and more specifically the substitution of the role of National Assembly with the Minister of Communications are not in conflict with the provisions of the Constitutions. The OCSLA noted that in terms of section 43 read together with section 44 of the Constitution the legislative authority is vested in Parliament. It also examined the provisions of section 55 of the Constitution which deals with the powers of National Assembly.

OCSLA’S LEGAL OPINION (5) In particular section 55 indicates that the National Assembly when exercising its legislative power may consider, pass, amend or reject any legislation (S 55(1) and must provide for mechanism that will ensure that all executive organs of state in the national sphere of government are accountable to it (S 55(2)). Section 55 also provides that the National Assembly must maintain oversight of the exercise of national executive authority and any organ of state (S 55(2)). The OCSLA indicated that despite the proposed amendment, the National Assembly will retain its oversight role of the exercise of national executive authority which is ultimately accountable for the implementation of legislation.

OCSLA’S LEGAL OPINION (6) As a result, the OCSLA concluded that even though the amendments have the effect of removing the National Assembly’s role as prescribed in section 13, 15 and 15A of the principal Act, however the National Assembly retains its power to hold the national executive accountable or the exercise of its power and the implementation of legislation. The OCSLA proceeded to make general comments on the Bill. They are proposing that in terms of section 13 of the principal Act the appointment of non-executive members be amended to the effect that these members will no longer be appointed by the President on advice of the National Assembly, but on recommendation of the Minister.

OCSLA’S LEGAL OPINION (7) The OCSLA referred to Section 13(2) of the principal and indicated that since the role of the President is substituted by the Minister it will be imperative to ensure that section 13(2) is complied with to ensure that the non-executive members are appointed in a transparent manner. Sections 13(2) read as follows: “(2) The non-executive members of the Board must be appointed in a manner ensuring- Participation by the public in a nomination process; Transparency and openness; and That a short-list of candidates for appointment is published, taking into account the objects and principles of this Act” .

OCSLA’S LEGAL OPINION (8) The OCSLA consequently suggested that section 13(2) be amended as follows: “(2A)(a) Subject to subsection (2), the Minister must appoint a nomination committee to make recommendations to the Minister for the appointment of members of the Board contemplated in subsection (1). (b) The Minister must – (i) ensure that the committee is broadly representative of the demographics of the Republic and that both males and females are represented; and (ii) ensure that the committee members have the necessary skills, knowledge, qualifications and experience to serve on the committee”.

OCSLA’S LEGAL OPINION (9) The OCSLA confirmed that the amended subsection (2A) seeks to provide for the appointment of a nomination committee to make recommendations to the Minister for the appointment of non-executive members of the Board. They further confirm that the Minister must ensure that the committee is broadly representative and the committee members have the necessary skills, knowledge, qualifications and experience to serve on the committee.

OCSLA’S LEGAL OPINION (10) The Office of Chief State Law Advisor also proposed that section 13(10) of the principal Act as follows: “(10) (a) [Nine] Five members of the board, which must include the chairperson or the deputy chairperson, [will constitute] constitutes a quorum at any meeting of the Board. (b) Decisions of the Board must be taken by a majority of votes, and in the case of an equality of votes the chairperson has a casting vote in addition to his or her deliberative vote”. The Office of Chief State Law Advisor confirmed that amendment provides for the quorum for decision-making purposes and for the vote of the chairperson. SECRET

OCSLA’S LEGAL OPINION (11) The Office of Chief State Law Advisor also proposed that section 15 of the principal Act should be amended to indicate that the president may, after due inquiry, remove a member on account of the grounds listed in subclause (1)(a) to (e). But in so far as the removal of a member on account of misconduct or inability to perform his or her duties efficiently is concerned, the decision for such removal must be based on finding to that effect by an independent panel appointed by the President in consultation with the Minister. SECRET

INDEPENDENT LEGAL OPINION (1) Supported the view of the Chief State Law Adviser, which states that the Constitution requires a rational connection between the legislation and the achievement of a legitimate government purpose; and legislation must not infringe the Constitution. Therefore, the proposed manner of appointing non-executive members of the SABC Board must be open, fair and transparent. Noted that the amendment of the legislation is intended to enable the Minister to resolve problems faced by the SABC Board as a result of either misconduct by members of the SABC board or by inability to perform the duties as soon as such problems arise. SECRET

INDEPENDENT LEGAL OPINION (2) Further noted that the intention is to reduce the long parliamentary appointment process, which process can only be followed when the National Assembly is in session. Considered the problem statement for the proposed amendments which indicates that the current process of appointment or removal of board members in the Broadcasting Act is cumbersome and time- consuming and the Minister who is the representative shareholder of government is exposed to serious problems quicker. Based on the abovementioned challenges, he believes that there is clear reason why the Minister intends to amend the Broadcasting Act and a legitimate purpose for the Minister to amend this aforesaid Act. SECRET

INDEPENDENT LEGAL OPINION (3) Indicated that is of the view that there is a clear reason for reducing the current number of executive and non-executive members from twelve to nine due to the following problems: As a result of its large size, its members are easily lobbied by external parties; A large board is expensive; and A large board has been seen in the past, easily becomes dysfunctional due to many competing interests. SECRET

INDEPENDENT LEGAL OPINION (4) Is of the view that executive members of the SABC Board is indeed cumbersome, such a cumbersome process arises where a number of members resign and the National Assembly is not immediately able to embark on an appointment process. This led to prejudicial to the functioning of the SABC. Advised that the requirement of “transparency and openness” contemplated in section 13(2) of the Act be made in the Bill as to how transparency and openness shall be achieved in order for the public to know how members of the SABC Board were appointed and to encourage the public to participate in the appointment process. SECRET

INDEPENDENT LEGAL OPINION (5) He also supports the removal of non-executive of the SABC Board by the President after due enquiry without the involvement of the National Assembly but he suggests that the nature of enquiry should be provided in the Bill in order for the affected person to be given a reasonable opportunity to make representations why she or he should not be removed from office. Advised that the grounds of removal from office include misconduct and inability to perform his or her duties efficiently in terms of section 15 of the Act has implications for a person’s prospects of appointment in future. He is of the view that a proper hearing may be given and it may take place by way of written representations to ensure that a process is not capable of being easily manipulated and prolonged by the affected members and this may easily achieved without the need for an oral hearing. SECRET

CONCLUSION The two legal opinions indicate that there is a clear reason and legitimate purpose for the amendment and there is therefore compliance with constitutional requirements for legislative making. Therefore the proposed amendments would not appear to infringe the Constitution. SECRET

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